MARIA LUCIA BELMONTE, Appellant v. THE STATE OF TEXAS, Appellee
Opinion by Justice Murphy
Maria Lucia Belmonte appeals her conviction for theft-by-check in an aggregated amount of at least $20,000 but less than $100,000. See Tex. Penal Code Ann. § 31.03(a), (e)(5) (West 2011). After finding appellant guilty, the trial court sentenced her to two years in prison, suspended the sentence, placed appellant on ten years' community supervision, and ordered $109,147 in restitution. Appellant contends in two issues that the evidence is legally insufficient to show she had the intent to commit theft at the time she wrote the checks and the trial court erred in admitting a pre-indictment diversion agreement she claims was inadmissible as an offer of compromise. See Tex.R. Evid. 408. We affirm.
Appellant and her three sisters operated a cafeteria, catering, and vending machine business named MQH Food Services, Inc. The complainant Seung Hwang owned and operated a convenience store and check-cashing business named Jamal's. Between August 8 and 11, 2006, appellant presented sixteen MQH checks to Hwang that were signed by appellant and aggregated $93,520. Hwang cashed the checks, which were later returned as “uncollected” or for “insufficient” funds. Although appellant promised Hwang several times that she would pay the checks, she never did.
Hwang contacted the Collin County District Attorney's office, and Rodney Neal, a fraud investigator in the hot check division, was assigned to the case. Following discussions that included appellant's attorney, appellant signed a notarized “Diversion/Partial Payment Program” agreement dated September 25, 2006. Neal signed the agreement on behalf of the district attorney's office. Appellant initialed the paragraph in the diversion agreement acknowledging she would not be indicted or prosecuted if she made full restitution by the due date. She also initialed the following paragraph admitting her knowledge of insufficient funds to cover the checks when written:
I admit and acknowledge that I signed and issued all of the checks as referenced on the attached list, and I knew at the time I signed and issued those checks that I did not have sufficient funds in the bank to pay those checks, and/or I knew then that the account on which the checks were written and issued by me was closed, as the case may be, as to each of the referenced checks.
Neal testified at trial that he went over each paragraph of the agreement with appellant and had her initial each paragraph. Appellant testified Neal told her to initial the paragraphs and told her “[t]his is what it means.” She said she “really” did not read the agreement.
Appellant paid $3,000 when she signed the agreement in September. She paid another $16,000 in November. Although appellant was given several extensions of time until March 2007 to pay the remainder, she made no further payments and was indicted for theft by check in May 2007.
The evidence showed that at the time appellant presented the checks to Hwang to cash in August 2006, Hwang had been cashing appellant's business checks since late 2004. Between December 2005 and August 6, 2006, Hwang cashed over 1,000 checks totaling approximately $4.4 million and for which Hwang charged total check-cashing fees of approximately $88,000. Hwang testified he was comfortable cashing the larger checks after physically visiting one of appellant's job sites and observing the nature of the business.
Appellant testified that her business arrangement with Hwang was like a loan because Hwang would cash appellant's checks knowing there were insufficient funds in appellant's bank account. She said Hwang would hold the checks for a day until appellant could deposit money from other sources to cover the checks. Appellant claimed Hwang's check-cashing fee was interest for these loans and that this arrangement was necessary because she had a “cash-flow problem.”
Hwang testified he normally deposited checks the evening of receipt or the next day; he denied having an agreement with appellant to hold her checks for one day. He also testified he believed appellant had the funds in her account to cover the checks when he cashed them. Upon questioning by the trial court, however, the following exchange occurred:
[COURT]: But why go to you instead of the bank? Why didn't the other people go to the bank? I mean, it sounds like she was short of money. She put a $10,000 catering job check in the bank, and she'd tell you, I can't wait till that clears, I need money now.
[HWANG]: That's the—that's the most case of the—of the customers of—like a business customer.
[TRIAL COURT]: So that's—that's kind of a typical transaction.
[HWANG]: Yes, sir. Yes, sir.
Appellant testified she had “no intent of stealing any money.” Appellant also testified the August 2006 checks bounced because checks from one of her suppliers “started returning,” which caused her bank to “freeze” her account. She also said her checks would not clear because her account balance fell too low when the supplier's checks bounced. Evidence was presented that showed the supplier's checks were being returned as early as July 2006. Appellant also testified that she “had no problem until they froze the account” and that her checks to Hwang would have cleared “had they not froze the account.” The only evidence that appellant's account was frozen came from her own testimony.
The State presented evidence that appellant's account was overdrawn in the amount of approximately $48,000 on August 17, 2006. Appellant testified that her bank “unfroze” her account after two months with a balance remaining of $16,167.33. Appellant's July 2006 bank statement showed deposits being made almost every day through July 31, 2006. Appellant's August 2006 bank statement showed no deposits after August 14, 2006. Appellant's September 2006 bank statement showed no activity on the account.
Neal, who at the time of trial had been the fraud, hot-check division supervisor for approximately four years, testified no one presented him with or described any loan agreement or arrangement as argued by appellant. He said he saw nothing that caused him to believe the situation presented anything other than a theft-by-check case.
Sufficiency of the Evidence
Appellant claims in her first issue that the evidence is insufficient to support her conviction because the State failed to prove beyond a reasonable doubt that appellant “had the intent to commit theft at the time she wrote the checks.” In determining whether the evidence is sufficient to support a conviction, the appellate court must view all of the evidence in the light most favorable to the verdict and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011). This standard does not require scrutiny of the fact finder's actual reasoning process, if known. See Jackson, 443 U.S. at 319 n.13. The standard recognizes that the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See id. at 326.
A person commits the offense of theft if he “unlawfully appropriates property with intent to deprive the owner of property.” See Tex. Penal Code Ann. § 31.03(a). As to each check here, the indictment alleged that appellant unlawfully appropriated Hwang's property (currency) “with intent to deprive [Hwang], and without the effective consent of [Hwang], namely, by issuing and passing a check, when [appellant] did not have sufficient funds in and on deposit with the bank for the payment in full of the checks․”
Appellant does not claim the evidence is legally insufficient to support a finding that appellant intended to “deprive” Hwang of his property. The issue then is whether the evidence supports a finding beyond a reasonable doubt that appellant “unlawfully appropriate[d] [Hwang's] property.” See id.; see also Thomas v. State, 753 S.W.2d 688, 692–93 (Tex.Crim.App.1988) (“intent to deprive” is a statutory element of theft that is analytically distinct from the absence of “effective consent”). Appropriation of property is unlawful if, as alleged in this case, it is without the owner's effective consent. See Tex. Penal Code Ann. § 31.03(b)(1).
Hwang consented to appellant's appropriation of his property—he cashed her checks. But this consent was not “effective” if it was induced by “deception.” See id. § 31.01(3)(A). “Deception” is defined in the theft provisions of the penal code as “failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true.” See id. § 31.01(1)(B).
Measured against this legal standard of “deception,” a rational trier of fact could have found beyond a reasonable doubt that appellant unlawfully appropriated Hwang's property. Appellant knew she had cash-flow problems. She not only admitted, but insisted, that she had Hwang cash checks for her at a time when there were insufficient funds in her bank account. She also knew her checks would not clear when checks from the supplier “started returning.” Those checks were being returned in July 2006. Appellant's bank records showed the account was overdrawn by approximately $48,000 on August 17, 2006, within a week of the August 11 checks Hwang cashed for her. The checks to Hwang were returned as “uncollected” or for “insufficient” funds, and appellant failed to pay back Hwang despite repeated promises to do so. Hwang testified he deposited appellant's checks the day of receipt or the next day and he believed appellant had funds to cover the checks. Neal testified based on his experience that he saw nothing in his investigation that caused him to believe the situation presented anything other than a theft-by-check case.
The trial court was the sole judge of the credibility of the witnesses. Jackson, 443 U.S. at 26. From this evidence, the trial court could have concluded beyond a reasonable doubt that appellant obtained the funds from Hwang by failing to correct a false impression previously created by appellant (that the funds would be in her account at least by the next day), the impression likely affected Hwang's judgment, and appellant did not believe that impression to be true. See Tex. Penal Code Ann. § 31.01(1)(B).
Appellant argues the “key issue in this case is whether deception existed at the time the checks were written, and whether the State proved that on the date [a]ppellant wrote the checks, there were insufficient funds in her account to cover them.” Appellant further argues the evidence “is clear” that on the dates the checks were written, appellant “had no reason to believe the funds were not in her account, the funds were in her account, and she therefore did not have the intent to commit theft.”
The Texas Court of Criminal Appeals recently decided in Geick v. State that “if an indictment uses a statutory definition to specify how a theft was committed, the State must prove the offense as charged in the indictment.” 349 S.W.3d 542, 543 (Tex.Crim.App.2011). In that case, the court held the State was required to produce evidence of “deception” because the State unnecessarily pleaded that the theft was by deception but provided no proof of deception; the evidence therefore was legally insufficient to support the conviction. Id. at 548. The indictment here alleged, as to each check, that appellant unlawfully appropriated Hwang's property “with intent to deprive [Hwang], and without the effective consent of [Hwang], namely, by issuing and passing a check, when [appellant] did not have sufficient funds in and on deposit with the bank for the payment in full of the checks․” Under Geick, any failure by the State to prove this latter allegation as to the sufficiency of funds “in and on deposit with the bank for the payment in full of the checks” exactly as alleged does not require a decision the evidence is legally insufficient. Id. at 545–47. This allegation, unlike the allegation of “deception” in Geick, is not a statutory element or definition of a theft offense that narrowed the manner and means under which appellant could have been convicted of theft. See id. at 547–48. This allegation, therefore, did not, for sufficiency purposes, exclude theft by deception as a manner and means in which the offense could have been committed. See id. At most, this allegation gave rise to an immaterial variance. See id. at 545 (“when an indictment needlessly pleads an allegation that gives rise to an immaterial variance, that allegation will not be included in the hypothetically correct jury charge” against which evidentiary sufficiency is measured).
Even assuming the State was required to produce evidence to support the allegation of insufficient funds, the evidence supports the allegation. Appellant's August 2006 bank statement shows she wrote three checks totaling $18,025 on August 8, 2006, with her daily balance on that date being $7,116.31. The bank statement also shows appellant wrote three checks totaling $15,525 on August 9, 2006, with her daily balance on that date of $928.07. This is some evidence appellant knew she had insufficient funds in her bank to cover these checks when she wrote them. The aggregated amount of these checks exceeds $20,000 and is less than $100,000, which is the range alleged in the indictment. That appellant may have made substantial deposits on these dates does not require a contrary decision because the daily balances for these dates do not reflect these deposits. This evidence, in addition to appellant's testimony she knew there were insufficient funds in her account to cover the checks when cashed, and evidence the checks were returned as “uncollected” or for “insufficient” funds, is evidence supporting the indictment allegation that appellant passed the checks when she “did not have sufficient funds in and on deposit with the bank for the payment in full of the checks.”
Appellant also argues the evidence was insufficient to show she “intended to commit theft in that the totality of the circumstances was that [a]ppellant and the recipient of the checks followed a business history of treating each check as a loan transaction for which the recipient received interest.” The trial court did not have to accept this defensive theory of the case. Appellant's loan-transaction theory also supports a finding appellant knew there were insufficient funds in her account to cover the checks when she wrote them. We overrule issue one.
Admission of Diversion Agreement
Appellant claims in her second issue that the diversion agreement was inadmissible as an offer of compromise under rule of evidence 408. See Tex.R. Evid. 408. She argues the exhibit “contained the only evidence that suggested [a]ppellant had knowledge of insufficient funds in her account at the time the checks were written, contradicting the evidence the State offered at the time of trial.” Rule 408 provides, in relevant part, that evidence of “furnishing or offering or promising to furnish” or “accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount.” Id.
At the time the State offered the agreement, appellant objected “as plea negotiations.” The State argued the agreement was not a plea negotiation because appellant had not been indicted. After a short break, the trial court overruled the objection.
We need not address whether the trial court erred in admitting the agreement, because any error in admitting the diversion agreement was harmless. See Tex.R.App. P. 44.2(b) (appellate court must disregard non-constitutional error that does not affect substantial rights). An appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the fact finder's verdict. See Casey v. State, 215 S.W.3d 870, 885 (Tex.Crim.App.2007); see also Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998) (conviction should not be reversed for non-constitutional error “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect”).
The objectionable information in the diversion agreement is cumulative of appellant's trial testimony that she regularly wrote checks to Hwang without having sufficient funds in her account to cover them. See Whitaker v. State, 286 S.W.3d 355, 364 (Tex.Crim.App.2009) (error in admission of evidence harmless when same evidence introduced by either State or defendant without objection). The record as a whole also shows appellant had a “cash flow problem,” she claimed all checks were to be held at least one day by Hwang in order to allow sufficient funds to reach her bank account to cover the checks, the supplier's checks had been bouncing since at least July, and appellant's bank account actually contained insufficient funds to cover the checks written by appellant and cashed by Hwang between August 8 and 11, 2006. The record further shows the trial court's comments in finding appellant guilty—appellant's testimony persuaded the trial court that “things got bad enough that [appellant] no longer felt that way [that checks would always clear the next day]. And that [appellant] didn't tell him things had changed.” The trial court added that appellant had written almost $100,000 of checks at a time when she was $150,000 “in the hole” and she knew she could not cover the checks. The court concluded then that the State had met its burden. From the record as a whole, we conclude that any error in admitting the diversion agreement did not influence the fact finder, or had but a slight effect. See Johnson, 967 S.W.2d at 417. We overrule issue two and therefore affirm the trial court's judgment.
MARY MURPHY JUSTICE